In a rare en banc opinion, the Dallas Court of Appeals ruled that a no-evidence summary judgment motion that challenges “one or more” of the listed elements of each of a plaintiff’s claims is legally insufficient under TEX. R. CIV. P. 166a(i). Further, the Court held, there is no “fair notice” exception to the requirement of specificity, and this legal insufficiency may be raised for the first time on appeal and need not be preserved in the trial court. Justice O’Neill dissented, agreeing with the majority that the motion here did not meet the specificity requirements of Rule 166a(i), but arguing that there was “fair notice” and that, in any event, Plaintiffs had waived the issue by failing to clearly object or specially except and obtain a ruling on the issue in the trial court.

The founders of Gloria’s restaurants spent significant time and money researching various aspects of the Salvadoran, Mexican, and Tex-Mex food that became their restaurants’ hallmark. They regarded such matters as trade secrets. So, when one of their former managers, Mario Alfaro, left Gloria’s and started a new restaurant focusing on the same cuisine, they filed suit, asserting claims for tortious interference, misappropriation of trade secrets, and conversion. Defendants responded with a no-evidence summary judgment motion that referred to the page number of Gloria’s petition on which each claim was stated, listed the
essential elements of each claim, and then asserted Plaintiffs “have no evidence on one or more elements of this cause of action.” The motion challenged no specific element of any claim. Unsure how to respond, Gloria’s attempted to produce evidence on every element of every claim. Gloria’s complained of the motion’s vagueness, but did not specially except to it or seek a ruling from the trial court on that vagueness “objection.” Ultimately, the trial court granted summary judgment against Gloria’s on all claims. The Court of Appeals, sitting en banc, reversed and remanded.

Rule 166a(i) requires a no-evidence summary judgment motion to specify which elements of the non-movant’s claim or claims lack supporting evidence. The rule’s comments make clear that it “does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” “[T]he rule requires that each element challenged must be specifically identified as such, so the non-movant is not left to guess which elements the movant challenges.” A motion that doesn’t meet this level of specificity “is fundamentally defective and cannot support summary judgment as a matter of law.” Such was the nature of the motion in this case.

Defendants argued that “one or more” here should be read as a no-evidence challenge to “each and every” element of Plaintiffs’ claims—especially as Plaintiffs seemed to have interpreted it that way. The Court rejected that argument, however, finding the phrases to be “fundamentally different.” Likewise, it rejected Defendants’ argument that, in light of Plaintiffs’ thorough response to the motion, the Court should recognize a “fair notice” exception to the strict requirements of the rule. Noting that a traditional summary judgment cannot be upheld on grounds not specified in the motion, the Court held a similar principle applies here, reasoning that such an exception would subvert the requirements of the rule; if the no-evidence motion does not specify the particular element being attacked, a summary judgment based on that motion cannot be upheld. Finally, again analogizing to its jurisprudence on traditional summary judgments, the Court held that an objection or exception in the trial court is not required; a nonspecific no-evidence motion is insufficient as a matter of law and may be challenged on that basis for the first time on appeal.

Justice O’Neill dissented. While he agreed with the majority about the specificity required by Rule 166a(i), he would have held that a “fair notice” exception exists—drawing upon the Supreme Court’s decision in Timpte Industries v Gish—and that it was satisfied here; that is, by its response, Gloria’s demonstrated it had “fair notice” that Defendants were challenging all elements of all claims. Further, Justice O’Neill would have held Plaintiffs waived their complaint by not raising it and obtaining a ruling in the trial court, because the deficiency in the motion could easily have been cured, if the objection had been raised and dealt with there. One wonders whether there wasn’t also a further practical undercurrent to the dissent: the efficacy of remanding the case to the trial court for further proceedings, with no review of the merits, given that Gloria’s had already attempted to proffer evidence on all elements of all claims, but suffered summary judgment anyway.

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